Jackson ex dem. Kip v. Corley

14 Johns. 323

Opinion

Per Curiam.

There can be no doubt that a writ of certiorari may issue, and perform the same office, in every case, as a writ of habeas corpus. The statute (1 R. L. 140.,) puts them on the same footing, and considers them as equally efficacious in the removal of a cause from the courts of common pleas and mayor’s courts, into this court. Indeed, a certiorari is of more extensive use; for a habeas corpus lies only where the defendant has been arrested, and is in prison, or has been let to bail; or where he has been arrested on process, and endorsed his appearance on the writ, and where, as in the action of ejectment, common bail has been filed. In all these cases, the certiorari is equally applicable; and it is exclusively proper, when the defendant is not in custody, or has not filed common or special bail, or has not endorsed his appearance.

It is true, that in practice, the writ of certiorari has seldom been used. This, however, cannot take away the writ, or abridge its effect.

This cause is, therefore, well removed by the certiorari which has been issued.